LESBIAN/GAY LAW NOTES

ISSN 8755‑9021 December 2004

 

Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013,

212‑431‑2156, fax 431‑1804; e‑mail: asleonard@aol.com or aleonard@nyls.edu

 

Contributing Writers: Allen E. Drexel, Esq., New York City; Joseph Griffin, Student, NY Law School '05; Alan J. Jacobs, Esq., New York City; Todd V. Lamb, Esq., New York City; Sharon McGowan, Esq., New York, N.Y.; Tara Scavo, Esq., New York City; Daniel R Schaffer, New York City; Audrey E.Weinberger, Student, NY Law School '05; Robert Wintemute, Esq., King's College, London, England; Leo Wong, Esq., Newark, New Jersey.

 

Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212‑353‑

9118; e‑mail: le_gal@earthlink.net.  Inquire for subscription rates.

 

(C) 2004 by the Lesbian & Gay Law Association Foundation of Greater New York.

 

VOTERS APPROVE STATE CONSTITUTIONAL BANS ON SAME-SEX MARRIAGE IN ELEVEN STATES  

 

In state-wide referenda held in eleven states during the national elections on November 2, voters approved proposed state constitutional amendments to ban same-sex marriage by comfortable margins.  The new amendments were approved by voters in Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Oklahoma, Ohio, Oregon and Utah. Advanced speculation that the Oregon measure might be narrowly defeated proved to be just that – speculation – as the measure received 57% of the vote, the narrowest margin of the eleven but still decisive.

 

Now the litigation will begin.  The day after the election, Lambda Legal announced its intention to file suit in Georgia to challenge that state’s amendment, based on similar arguments to those that were made in the unsuccessful attempt to get the courts to block the vote.  The Georgia courts did not reject the substance of Lambda’s arguments in that litigation, rather finding that under state precedents the court lacked jurisdiction to block the vote, and there are hints in the opinions that the judges would take seriously arguments about the misleading nature of the way the measure was described on the ballot.  Although pre-trial lawsuits failed in Arkansas and Ohio, in both states judges indicated that serious questions could be raised after the vote.  In Louisiana, a trial judge has already found that the amendment approved there on September 18 violates the state constitution’s “single subject” rule, and the issue is pending before the state’s Supreme Court (whose chief justice had previously expressed concern on this ground in a concurring opinion to the court’s refusal to block the vote in advance), where oral argument was heard at the end of November.  

 

Suits were promptly filed in the weeks following the election contesting the amendments adopted in Oklahoma and Kentucky, also citing the single-subject rule as the primary objection to the votes.  In Oklahoma, four women filed a federal court action in U.S. District Court in Tulsa, claiming not only that the amendment is invalid but that so is the federal Defense of Marriage Act.  This litigation was evidently undertaken without the participation of any national gay rights organizations, which have been discouraging the filing of anti-DOMA suits at a time when the possibility of a federal Marriage Amendment hangs in the balance.  In Kentucky, three voters filed a lawsuit in Franklin Circuit Court, claiming that the secretary of state should not have approved the measure for the ballot because it was fatally flawed, in light of the state constitution’s ban on multiple-issue ballot measures.

 

Perhaps the most pressing question coming out of the amendment votes was what will happen next in Oregon, where the Supreme Court was scheduled to ponder the issue of same-sex marriage just weeks later in a case stemming from last spring’s spate of same-sex marriages in Multnomah County.   Would the parties withdraw the suit as moot, or pursue it on some theory perhaps of federal constitutional law?  Would the court, whose members are subject to retention elections, feel intimidated by the solidity of the affirmative vote on the amendment?  Could the parties or the court find an alternative state constitutional ground to get over the barrier of the new amendment?  The Court reacted to the vote by postponing oral argument in the case to mid-December, and the ACLU, pragmatically, decided that it was litigating now for civil unions, not marriage.  Opponents of the lawsuit cried foul, claiming it had been filed solely as a marriage suit, and the plaintiffs had rejected civil unions as an alternative in their arguments to the trial court. (Oregonian, Nov. 19).

 

Ultimately, one or more of these state constitutional amendments may be put to the test of a federal constitutional challenge, in which the Defense of Marriage Act, a federal statute passed in 1996, may also become entangled.  DOMA provides that states have no obligation to recognize same-sex marriages contracted elsewhere, although they retain discretion to do so, and that the federal government will not recognize such marriages for purposes of federal law.  Since 1967, when the Supreme Court decided _Loving v. Virginia_, striking down a state law against interracial marriage on 14th Amendment grounds, there have been good arguments available in favor of a federal constitutional right for same-sex couples to marry, although such arguments under analogous state constitutional provisions did not begin to fare well in state courts until the December 1999 Vermont Supreme Court ruling in _Baker v. State_. 

 

There have been no recent federal appellate rulings considering the issue under the federal constitution, certainly not since the Supreme Court recognized that anti-gay discrimination may violate the Equal Protection Clause, in _Romer v. Evans_, or that state burdens on same-sex relationships may violate the due Process Clause, in _Lawrence v. Texas_.   However, it is likely that gay rights litigation groups will trod warily where federal constitutional claims are concerned, in light of expected changes in membership of the Supreme Court, perhaps well before such a case could come before that tribunal.  A.S.L.

 

LESBIAN/GAY LEGAL NEWS

 

Britain and Scotland Approve Civil Unions for Same-Sex Partners

 

On the first anniversary of the historic same-sex marriage decision by the Massachusetts Supreme Judicial Court, November 17, the British Parliament gave final approval to the government’s Civil Partnership bill, which received royal assent from Queen Elizabeth II the following day.  Civil partnership under the new law, which goes into effect in one year, will accord to same-sex partners almost all of the legal rights and responsibilities enjoyed by married partners in England and Scotland, where the Scottish Parliament had already voted to be governed by whatever the U.K. parliament decided on this issue.

 

A news release issued by the government on Nov. 19 summarized the main features of the legislation as follows. “Provisions in the Act include: a duty to provide reasonable maintenance for your civil partner and any children of the family; civil partners to be assessed in the same way as spouses for child support; equitable treatment for the purposes of life assurance; employment and pension benefits; recognition under intestacy rules; access to fatal accidents compensation; recognition for immigration and nationality purposes.” (It should be noted that the legal construction of marriage and its associated bundle of rights in the U.S. is far more encompassing and detailed than in England, where less depends on marital status because of the much more greatly developed array of public welfare rights that citizens enjoy on an individual basis, for example regarding national health care.) 

 

Local registration services will administer the program, which will require couples to sign the register in the presence of a registration officer and two witnesses.  The Act provides a formal, court-based process for dissolution of a partnership. “Same-sex couples who have entered legally recognized overseas relationships to be treated as civil partners in the United Kingdom,” so those who have ventured to Canada to get married will have a recognized legal status, if not fully recognized marriage, in the U.K.  The one-year delay was built into the law to provide time to revise regulations and procedures, court rules, and instructional materials for government employees who are to implement the law. A.S.L.

 

3rd Circuit Panel Says Solomon Amendment Violates Free Speech Rights of Law Schools

 

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, based in Philadelphia, ruled on November 29 by a 2-1 vote that the Solomon Amendment, a federal law that cuts off funding to colleges and universities that ban military recruiters from their placement offices, violates the First Amendment rights of the law school plaintiffs who are part of a coalition challenging the amendment. _Forum for Academic and Institutional Rights v. Rumsfeld_, 2004 WL 2698052.  Reversing a decision last year by U.S. District Judge John C. Lifland denying a preliminary injunction against enforcement of the federal law, the majority of the appellate panel found that the plaintiffs, a group of law schools, professors and students, had met the threshold requirements, including showing the likelihood that they would prevail on their constitutional claim, and were entitled to an injunction barring enforcement of the Solomon Amendment pending a full trial on the merits of their case.

 

The Solomon Amendment was first adopted by Congress in 1994 as part of a Defense Appropriations bill.  It was introduced by Representative Gerald Solomon, who had been aroused about this issue after a lawsuit resulted in the exclusion of military recruiters from the law school placement office at the State University of New York at Buffalo, in his congressional district, because of the anti-gay policies of the military and a non-discrimination policy binding on the state university system adopted in an executive order by former Governor Mario Cuomo.  The amendment has been included in one form or another in all subsequent Defense appropriations bills, and just this past summer, while this appeal was pending, was toughened by Congress to require that military recruiters have the same quality and scope of access as all other recruiters at any school that wanted to keep receiving federal financial assistance.  The development that seems to have triggered recent litigation was new “get tough” attitude by the Defense Department after the events of September 11, 2001, including a new interpretation that would deprive an entire university of all federal funding if any one unit excluded military recruiters.

 

The opinion by Circuit Judge Thomas L. Ambro accepted two alternative theories in support of the plaintiffs’ case.  Ironically, both theories are grounded in one of the major gay rights defeats from the U.S. Supreme Court, _Boy Scouts of America v. Dale_, 530 U.S. 640 (2000), in which the Court held that it would violate the First Amendment rights of the Boy Scouts for New Jersey to apply its non-discrimination law to compel the Scouts to accept an openly-gay man as an assistant Scoutmaster. 

 

Turnabout is fair play in constitutional law, apparently, for Judge Ambro found that by threatening to penalize universities with the loss of millions of dollars if they do not provide equal access to their facilities for military recruiters, the government is improperly intruding on the freedom of expressive association of the law schools and subjecting them to unconstitutional compelled speech, just as New Jersey was found to have done to the Boy Scouts in the earlier case.  Under both theories, expressive association and compelled speech, the government could only prevail by showing that its policy is necessary to serve a compelling public interest, and is narrowly tailored to achieve that interest without unnecessarily abridging constitutional rights – the so-called strict scrutiny test.

 

By contrast, District Judge Lifland had rejected the argument that this case involved either expressive association or compelled speech, instead treating it as an expressive conduct case.  Government policies that impede expressive conduct are evaluated under a less demanding standard of heightened scrutiny, under which Judge Lifland had found that the government’s rationale for the policy was sufficient to uphold it against constitutional attack, at least for purposes of preliminary injunctive relief.

 

In order to get a preliminary injunction against a government policy, plaintiffs have to show that their challenge is likely to succeed on the merits and that failure to provide interim relief would subject them to irreparable injuries and disserve the public interest.  Courts have found that unconstitutional restrictions on free speech is presumptively irreparable in monetary terms and generally contrary to the public interest in free and uninhibited debate, so the major hurdle facing the plaintiffs in this case was to convince the court that their constitutional attack on the Solomon Amendment was likely to succeed at trial.

 

Rejecting Judge Lifland’s approach, the panel majority found that this was clearly a case both of expressive association and compelled speech.   Judge Ambro found that a law school is an  “expressive association,” that is, an institution that seeks to “transmit a system of values,” to quote the Supreme Court’s characterization of the Boy Scouts in _Dale_, and that, as the Supreme Court had deferred to the Boy Scouts’ contention that requiring them to have an openly-gay adult Scout leader would affect their ability to express their viewpoint, the court in this case should defer to the law schools’ argument that requiring them to accommodate military recruiters would adversely affect their ability to express their views on non-discrimination.

 

“Rarely has government action been deemed so integral to the advancement of a compelling purpose as to justify the suppression or compulsion of speech,” wrote Ambro.  Although the court was willing to presume that the government had a compelling interest in recruiting talented lawyers to serve in the Judge Advocate General Corps, it found that the government had presented no evidence in its opposition to the motion for preliminary relief that the Solomon Amendment was “narrowly tailored” to achieve this end.  

 

Unlike private employers, whose limited resources for recruitment make access to law school placement offices important, Ambro found that the military has many alternative ways to recruit and the resources to do so.   Ambro rejected the argument by dissenting Judge Ruggero Aldisert that as a matter of common sense the military’s ability to recruit lawyers would be seriously undermined by exclusion from law school placement offices.

 

Ambro also found that there was strong support for the alternative theory of compelled speech in this case. “Recruiting is expression,” he asserted. “Recruiting conveys the message that ‘our organization is worth working for,’ while soliciting and proselytizing convey the similar functional message that ‘our charity is worth giving to’ or ‘our cause is worth joining.’” In prior cases, the Supreme Court and other federal courts have made clear that requiring one organization to support the speech of another is “compelled speech” raising significant First Amendment concerns.  Although those other cases involved soliciting or proselytizing rather than recruiting, the majority of the panel found the analogies persuasive, and the rest of the analysis followed the same lines as for the expressive association claim.

 

Ambro last turned to the theory that District Judge Lifland had used to analyze this case – the expressive conduct theory – and found that the plaintiffs would still be entitled to an injunction under this theory, because the government had presented no evidence that operation of the Solomon Amendment enhanced the recruitment of military lawyers.  In fact, he found that the record showed just the opposite. “It may be the case, as the Government argues, that on-campus recruitment is an employer’s principal tool for attracting talented students,” he wrote. “But it does not thereby follow that recruiting by means of the Solomon Amendment is effective.  On the contrary, it seems to us equally plausible that the Solomon Amendment has in fact hampered recruitment by subjecting the military’s exclusionary policy to public scrutiny.  The record is replete with references to student protests and public condemnation.  In this context, it is hardly ‘common sense,’ as the military alleges, that its presence on campus amidst such commotion and opposition has aided its recruitment efforts.”

 

“The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom,” wrote Ambro. “While no doubt military lawyers are critical to the efficient operation of the armed forces, mere incantation of the need for legal talent cannot override a clear First Amendment impairment.”

 

Judge Ambro was appointed to the court by Bill Clinton in 2000.  The other judge on the panel who agreed to this decision, Walter Stapleton, was appointed to the district court by Richard Nixon and elevated to the appeals court by Ronald Reagan.  The dissenter, Senior Circuit Judge Aldisert, was appointed to the court by Lyndon Johnson.  Born in 1919, he is the only member of the panel who lists military service in his judicial biography (Marine Major during World War II). 

 

Judge Aldisert argued in dissent that Lifland’s analysis was correct, and that the military’s compelling interest in recruiting lawyers from the schools that were barring military recruiters justified any incidental burden on the schools, which he found to be minor.   Noting that military recruiters would only be present at any given school for a brief period of time, Aldisert asserted that any burden on expressive association was slight, and that given the disclaimers that the law schools made, disassociating themselves from any agreement with the military’s anti-gay policies, there was no compelled speech. 

 

He also rejected the majority’s argument that on-campus recruitment was not necessary to achieve the recruitment goals of the military. “If military recruiters are denied the ability to reach students on the same terms as other employers,” he wrote, “damage to military recruiting is not simply probable but inevitable.  The Solomon Amendment reflects Congress’ judgment about the requirements of military recruiting, and ‘the validity of such regulations does not turn on a judge’s agreement with the responsible decision maker concerning the most appropriate method for promoting significant government interests.’”

 

Aldisert emphasized that the challenged law is a military appropriations bill, and noted Congress’s express authority under the Constitution to control federal spending, particularly in the context of national defense.  He also argued that such a bill should be treated as presumptively constitutional and not subject to strict scrutiny.

 

Aldisert criticized the law schools in very personal terms for appearing “to approach this question as an academic exercise, a question on a constitutional law examination or a moot court topic, with no thought of the effect of their action on the supply of military lawyers and military judges in the operation of the Uniform Code of Military Justice.”

 

According to a report in the _Boston Globe_ on Dec. 1, Harvard Law School, one of the first to bar military recruiters over the gay issue a quarter-century ago, responded to the decision by immediately reinstating the application of its non-discrimination policy.  Threatened with the loss of several hundred million dollars when the Defense Department decided to “crack down” on Solomon Amendment violators in the aftermath of 9/11 and the run-up to the invasion of Iraq, Harvard University’s president had ordered the law school to comply with the Solomon Amendment, which the former dean, Robert Clark, promptly did.  Clark’s successor, Elena Kagan, issued a brief statement on November 30, stating that she was “gratified by this result, and I look forward to the time when all law students will have the opportunity to pursue any legal career they desire.” The _Globe_ reported that other law schools it had contacted had not yet decided how to respond, but Kent Greenfield, a professor at Boston College who took a leading role in formulating the FAIR lawsuit, said that the way schools react will show how committed they really are to their non-discrimination policies.

 

That the government will attempt to get this ruling reversed seems inevitable, but for now the law schools who joined together to bring this suit under the banner of the Forum for Academic and Institutional Rights (FAIR) can savor a preliminary victory in the long struggle against anti-gay discrimination in the military.  The appeal on behalf of FAIR was argued on a volunteer basis by Joshua Rosenkranz, an attorney at the New York office of Heller, Ehrman, White & McAuliffe, a law firm with a long history of public interest work for the gay rights movement.

 

In the spirit of full disclosure, New York Law School, on whose faculty this writer serves, is one of the law schools in the FAIR coalition that brought the lawsuit, and this writer participated in some telephone conference calls discussing litigation strategy prior to the filing of the lawsuit.  A.S.L.

 

Indiana Appeals Court Issues Landmark Gay Family Ruling

 

In an important appellate ruling on a much-litigated issue, the Court of Appeals of Indiana ruled on November 24 in _In re the Parentage of A.B._, 2004 WL 2676547, that a lesbian co-parent of a child conceived through donor insemination of her partner is a legal parent of the child, entitled to seek custody and visitation upon the break-up of the women’s relationship. Reversing a “reluctant” decision to dismiss the case by Monroe County Circuit Judge Kenneth G. Todd, the court of appeals found that the common law of Indiana should evolve to encompass the realities of lesbian and gay families in the state. Writing for the court, Judge Ezra H. Friedlander penned an unusually empathetic and pragmatic decision.

 

According to the complaint filed by Dawn King, she and her partner, Stephanie Benham, had lived together for several years and had participated in a commitment ceremony before they decided to have a child.  According to Dawn, they mutually decided that Stephanie would become pregnant with sperm donated by Dawn’s brother so that both women would be biologically related to the child. (Although Judge Friedlander noted this fact, he did not rely on Dawn’s biological relationship to the child in reaching his decision.) Dawn assumed an equal parenting role after the child was born, bonding with the child as a mother, and all expenses of the birth that were not covered by insurance were paid out of the women’s joint bank account.

 

After the child, A.B., was born, Dawn filed an adoption petition with Stephanie’s consent, but while the petition was pending the two women separated, Stephanie withdrew her consent, and the petition was withdrawn. During this separation, which lasted for about three months, Dawn contributed to A.B.’s financial support and enjoyed regular visitation. The women reconciled, but Dawn did not re-file her adoption petition, for reasons not explained in the court papers. However, Dawn and Stephanie ended their relationship in January 2002. Dawn continued to pay child support and enjoyed visitation until late July 2003, when Stephanie stopped accepted her checks and cut off her contact with the child. In October 2003, Dawn filed her lawsuit, seeking recognition as A.B.’s second legal parent or, in the alternative, seeking at least a right of visitation on equitable grounds.

 

The trial judge granted Stephanie’s motion to dismiss the case, finding that there was no precedent under Indiana law to grant the relief Dawn was requesting, and that a trial court could not award such relief in the absence of a clear statutory claim or some appellate precedent.

 

Judge Friedlander agreed with Dawn’s argument that the trial judge had too narrowly construed _Levin v. Levin_, 645 N.E.2d 601 (Ind. 1994), in which the state’s supreme court held that the husband of a woman who conceived a child through donor insemination was the legal father of the child. “While _Levin v. Levin_ was certainly presented in the context of a marriage,” wrote Friedlander, “the supreme court’s analysis. . . does not expressly hinge on the marital status of the parties and is equally applicable to the case at hand. Moreover, we agree with Dawn that ‘no legitimate reason exists to provide the children born to lesbian parents through the use of reproductive technology with less security and protection than that given to children born to heterosexual parents through artificial insemination.’ As we have recently observed in the context of same-sex adoptions, we cannot close our eyes to the legal and social needs of our society; the strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs.”

 

The court noted the failure of the Indiana legislature to address new developments in family law. Indeed, the state’s supreme court in _Levin_ had noted with frustration the failure of the legislature to give any guidance on how to deal with donor insemination issues. Friedlander echoed this. “Encourage the Indiana legislature to help us address this current social reality by enacting laws to protect children who, through no choice of their own, find themselves born into unconventional familial settings,” he wrote. “Until the legislature enters this arena, however, we are left to fashion the common law to define, declare, and protect the rights of these children. We, therefore, hold that when two women involved in a domestic relationship agree to bear and raise a child together by artificial insemination of one of the partners with donor semen, both women are the legal parents of the resulting child.”

 

Friedlander reviewed in detail the history of the relationship as set forth in Dawn’s complaint, and found that, assuming those facts to be true, Stephanie had participated in creating a parental relationship between Dawn and the child. The court rejected Stephanie’s argument that recognizing Dawn as a legal parent would violate Stephanie’s constitutional rights. Although the U.S. Supreme Court has ruled that biological parents have constitutional rights superior to unrelated third parties, Friedlander contended that these precedents were inapplicable because “we have determined that Stephanie and Dawn are the legal parents of A.B. and stand on equal footing with respect to the child. When Stephanie agreed to bear and raise a child with Dawn and, thereafter, consented to and actively fostered a parent-child relationship between Dawn and A.B., she presumptively made decisions in the best interest of her child and effectively waived the right to unilaterally sever that relationship when her romantic relationship with Dawn ended.”

 

The case will now return to the Monroe County Circuit Court. If Stephanie decides not to contest any of Dawn’s factual allegations, then Dawn will be entitled to a judicial declaration of her parental status and a determination, consistent with the best interests of the child, of her parental rights. If Stephanie disputes Dawn’s allegations, there will have to be a trial.  Sean Lemieux, an Indiana attorney who formerly litigated gay rights cases as a staff attorney for the state affiliate of the ACLU, is representing Dawn in her lawsuit. A.S.L.

 

South African Supreme Court of Appeal Adopts Gender-Neutral Marriage Definition

 

A unanimous five-judge panel of the Supreme Court of Appeal of South Africa ruled on November 30 in _Fourie v. Minister of Home Affairs_, Case no. 232/2003, that the common law definition of marriage in South Africa should be changed to state as follows: “Marriage is the union of two persons to the exclusion of all others for life.” Ruling on an appeal by Marie Adriaana Fourie and Cecelia Johanna Bonthuys, a lesbian couple desiring to marry, from an adverse decision by the Pretoria High Cout, the court concluded that “the intended marriage between the appellants is capable of lawful recognition as a legally valid marriage, provided the formalities in the Marriage Act 25 of 1961 are complied with.”

 

The last part of the court’s statement is the “catch” in the decision, because it means that Ms. Fourie and Ms. Bonthuys cannot immediately marry, even though four members of the court agreed that the new common law definition of marriage should be effective immediately. (One judge thought that the court should suspend its order for two years to give the Parliament an opportunity to act in light of the court’s conclusion that current law violates the rights of gay people under the nation’s Constitution.)  This is because the “formalities of the Marriage Act” cannot be complied with until certain additional steps are taken, depending upon the type of marriage the women are seeking.

 

The Marriage Act specifies vows that are stated in gendered terms of husband and wife for all civil weddings, and the court found that the language was too specific to allow for a creative reinterpretation. Since the plaintiffs had not challenged the constitutionality of the Marriage Act directly, the court was not obliged to address that issue in this opinion. On the other hand, religious bodies authorized to conduct marriages are specifically allowed to adopt alternative verbal formulations for their marriage vows, subject to approval of the Minister of Home Affairs. Since there are some religious bodies in South Africa that might be willing to conduct same-sex marriages, it is possible that the women could seek a religious wedding and, if the Minister of Home Affairs cooperates, be married before any change has been made in the Marriage Act. That, of course, depends on the government being willing to facilitate enforcement of this judgment, which had already drawn criticism from at least one political party within hours of being announced.

 

The Lesbian and Gay Equality Project, a gay rights organization that appeared in this litigation as amicus curiae, filed a lawsuit this summer in the High Court in Johannesburg specifically attacking the gendered language in the Marriage Act, and their case, scheduled to be heard next year, could provide the vehicle for reforming the Marriage Act if the Parliament does not respond to the new decision with alacrity.

 

The November 30 ruling builds on an extraordinary string of successes by gay litigants, which is recited in detail by Judge Edward Cameron, author of the court’s opinion. Judge Cameron, the highest-ranking openly-gay judge in the country, made international headlines a few years ago when he spoke out as a person living openly with HIV, on the shortcomings of South Africa’s AIDS policies during an international AIDS conference held in Durban. As a law professor and writer, he was a leading voice against the Apartheid regime, and was appointed to the bench after the African National Congress became the governing party.

 

There was a striking poetic justice in Cameron being the one to write this opinion, and he eloquently placed the issues within the context of the larger South African struggle for equality for all peoples in the introductory portion of his opinion, emphasizing that the government born out of the long struggle against racism and oppression had determined to be committed to “a conception of our nationhood that was both very wide and very inclusive. . . Having themselves experienced the indignity and pain of legally regulated subordination, and the injustice of exclusion and humiliation through law,” he wrote, “the majority committed this country to particularly generous constitutional protections for all South Africans.”

 

The South African Constitution specifically confers on the courts authority to develop common law principles in accord with the nation’s Constitution and Bill of Rights. The post-apartheid constitution was unique in the world when it was adopted ten years ago in specifically including “sexual orientation” as a forbidden ground of government discrimination in its Bill of Rights. This reflected an acknowledgment of the important role that some openly-gay people, black as well as white, had played in the movement to free South Africa from Apartheid rule. This provision has been used by the courts to strike down the country’s sodomy law and to require changes in a host of government policies that had failed to take account of committed gay relationships.  Indeed, prior decisions brought the courts to the brink of declaring the right of same-sex couples to marry, although that question had not been previously brought directly to the appellate courts, gay rights litigants having decided strategically to proceed in incremental steps towards this ultimate goal.

 

Having now come to the question directly, Judge Cameron wrote that “the focus in this case falls on the intrinsic nature of marriage, and the question is whether any aspect of same-sex relationships justifies excluding gays and lesbians from it. What the Constitution asks in such a case is that we look beyond the unavoidable specificities of our condition - such as race, gender and sexual orientation - and consider our intrinsic human capacities and what they render possible for all of us. In this case, the question is whether the capacity for commitment, and the ability to love and nurture and honor and sustain, transcends the incidental fact of sexual orientation. The answer suggested by the Constitution itself and by ten years of development under it is Yes.”

 

Anticipating criticism that the court’s decision might be criticized as undemocratic in light of the failure of the Parliament to respond to earlier court rulings by legislating for same-sex marriage, Cameron commented: “The task of applying the values in the Bill of Rights to the common law thus requires us to put faith in both the values themselves and in the people whose duly elected representatives created a visionary and inclusive constitutional structure that offered acceptance and justice across diversity to all. The South African public and their elected representatives have for the greater part accepted the sometimes far-reaching decisions taken in regard to sexual orientation and other constitutional rights over the past ten years. It is not presumptuous to believe that they will accept also the further incremental development of the common law that the Constitution requires in this case.”

 

In a poignant touch, Cameron quoted key sentences from the Massachusetts Supreme Judicial Court’s decision of one year ago in _Goodridge v. Department of Public Health_, 798 N.E.2d 941 (Mass. 2003), which was written by Chief Justice Margaret Marshall, herself a native of South Africa who emigrated to the United States and was appointed to the Massachusetts court by Republican Governor William Weld after a distinguished career as chief legal counsel of Harvard University.  The verbal formulation adopted by the court for the new common law rule follows the same wording adopted by the Massachusetts court, which was itself following the example of the Canadian courts that had also adopted new common law definitions for marriage earlier in 2003.

 

Next steps await the government’s reaction. The Supreme Court of Appeals of South Africa is the appellate court charged with common law decision-making, but having premised this ruling on its view of the requirements of the Bill of Rights, the court left open the likelihood that the government or any other interested party could appeal this decision to the Constitutional Court, the highest appellate body on questions of South Africa’s constitutional law. (The South African courts have a permissive view of standing to appeal lower court decisions to the Constitutional Court.) The plaintiffs in this case had originally tried to appeal the trial judge’s adverse ruling to that court, but as their lawsuit did not directly challenge the constitutionality of the Marriage Act, the case did not lie within the mandatory appellate jurisdiction of the Constitutional Court, and it was directed instead to the Supreme Court of Appeal for a ruling on their demand for a reformulation of the common law definition of marriage.

 

The case lies within the discretionary appellate jurisdiction of the Constitutional Court, however, and it is unlikely that the government would want to implement a potentially controversial decision of this magnitude without the Constitutional Court having its final say.

 

But the decision is so solidly rooted in the legal developments of the past ten years that it is unlikely the Constitutional Court would disagree with this result. That was the attitude taken by Evert Knoesen of the Lesbian and Gay Equality Project, who told South African radio on Tuesday that “we foresee that within the next 12 months or so, same-sex couples will indeed be married. The principal has been won.”  A.S.L.

 

Gay Jamaican Loses Asylum Appeal in 3rd Circuit

 

In a Nov. 18 ruling that shows how very difficult the conservative federal courts and the Homeland Security hierarchy have made it for foreign gays to win asylum in the United States, the U.S. Court of Appeals for the Third Circuit, in Philadelphia, ruled against an asylum petition by a gay man from Jamaica, notoriously one of the most homophobic nations on earth, even though an Immigration Judge had ruled in the petitioner’s favor. _Parker v. Ashcroft_, 2004 WL 2616555 (unpublished and designated “not precedential”).

 

Oneil Orlando Parker, from Kingston, Jamaica, was found by the Immigration Judge to have credibly testified that an inflammatory newspaper outed him in 1999, that he was later threatened and assaulted by members of a neighborhood gang, and that his attempts to relocate to other neighborhoods in Jamaica were unsuccessful due to his being recognized as an openly gay man.  After his last relocation effort failed in 2001, Parker fled to the United States.  The Immigration Judge also found that some of the gang animus against Parker may have been due to family disputes between Parker and the gang’s leader, and from the gang’s belief that Parker had cooperated with police in a murder investigation.

 

Based on these factual findings, the Immigration Judge concluded that Parker was entitled to asylum in the United States.  Applying established precedents in the asylum case law, the judge concluded that Parker was a member of a distinct social group – gay men – who was reasonably afraid of future assaults if he returned to Jamaica, and that the police could not control the gang that threatens him with violence, linked at least in part to his sexual orientation.

 

 

The government appealed this ruling to the Board of Immigration Appeals, which reversed the judge.  Although the Board agreed with the judge that there was a “pervasive animus towards homosexuals in Jamaica” and that Amnesty International had reported that the police there treat gay people poorly, the Board asserted that Parker had not proved that the government itself was “unwilling or unable to protect him from harm”.”  This time it was Parker who appealed.

 

In an opinion for the three-judge panel, Circuit Judge Michael Chertoff wrote that “the pivotal issue here is whether substantial evidence on this record supports the determination that Parker did not prove that Jamaican authorities are unwilling or unable to protect him.” 

 

Chertoff found that the Board’s conclusion that the police could protect Parker was based on a letter that Parker himself had submitted as evidence. The letter, by a police detective named Michael Garrick, indicated that Parker lived in a violent neighborhood and had been threatened several times after his cousin James Brown was “shot at resulting in the arrest of three persons.” “The fact that Parker is close to Brown [sic] he has been threatened several times.  It has reached the extent that he reported to me that he is in fear of sleeping in his community,” wrote Garrick. “In addition, people from the community is [sic] accusing him of being a homosexual and expressed that they do not want him in the community.”  Garrick indicated that the police were offering protection and “have tried to get on top of the situation but Parker does not feel comfortable.”  It was Garrick’s understanding that Parker was in the U.S. seeking political asylum.

 

Chertoff characterized the Board of Immigration Appeals’ reading of this letter as “perhaps overly sanguine,” and characterized it as a “mixed message.”  The letter seemed to indicate that the threats against Parker were more about the gang’s dispute with his cousin than his homosexuality, but on the other hand that “individual police have tried unsuccessfully to help Parker, perhaps – as the Board acknowledged – because of his assistance in their investigation.”

 

But, more to the point, Chertoff then devotes a paragraph of his opinion to summarizing the overwhelming evidence that gay people in Jamaica are at serious risk, a paragraph worth quoting in light of the incredible conclusion this opinion reaches: “There is considerable evidence that virulent prejudice against homosexuals exists in Jamaica. Reports of Amnesty International – on which the Board relied – note two incidents of misbehavior against gays in police custody, one of which was a 1997 prison riot.  Amnesty International also described incidents in which police have failed to respond to ‘incidents of homophobic violence’.  An extensive news article in the Jamaica Gleener in 2001 recounts that leaders of both major political parties found it advantageous to emphasize their strong personal distaste for homosexuals.  The record discloses a culture of anti-homosexual violence that is deeply ingrained, and reflected in popular songs that urge violence against gay men.  And Parker himself related that he was involved in an altercation that police seemed not to take very seriously.”

 

But against this, Chertoff noted, it seemed that students who engaged in anti-gay violence “have faced expulsion,” and that a recently-established Public Defenders office has “strongly criticized violence targeted against homosexuals.”  Chertoff also noted evidence that some government agencies had begun programs “designed to educate police to respect citizen’s rights.”

 

In the light of this evidence, Chertoff found that the Board’s decision to overturn the judge’s ruling should stand. “The question boils down to this,” he wrote: “Was there substantial evidence that the government is not unable or unwilling to control violence against gays?”  Describing the question as “close,” Chertoff said, “We cannot conclude that the Board’s conclusion was unreasonable.  Although Jamaican society evidently takes a harsh view of homosexuality, there is some evidence – including Detective Garrick’s letter – that officials recognize that violence against gays is unacceptable.  We cannot say that the Board weighed this evidence unreasonably.”

 

In other words, even though the international human rights community has recognized that openly gay men in Jamaica face serious threats of assault and that the government has in the past not proved able to protect them, as far as the U.S. government is concerned, its treaty obligations to provide political asylum to members of distinct social groups who face serious persecution in their home countries does not extend to gay Jamaicans, not because of evidence that conditions have been ameliorated, but on the basis of speculation about a new attitude reflected by a few low-level officials.  The outcome in this case is particularly astonishing because the Immigration Judge, who was in the best position to weigh the credibility of Parker’s claims, ruled in his favor, and the present generation of Immigration Judges are not known for making easy grants of asylum.  More often than not, it is the alien rather than the government who is appealing an adverse ruling by an Immigration Judge to the Board of Appeals.  To have overrruled the judge on such flimsy evidence strikes this writer as outrageous, given the overwhelming documentation of the persecution of gay people in Jamaica. 

 

Judge Chertoff is a former federal prosecutor who was appointed to the 3rd Circuit by George W. Bush.  Why are we not surprised?  A.S.L.

 

Supreme Court of Kentucky Rejects Prejudicial Evidence of “Homosexual Voyeurism”.

 

In _Purcell v. Kentucky_, 2004 WL 2623944 (Ky. Nov. 18, 2004), the Supreme Court of Kentucky reversed the conviction of Jerel Purcell, convicted of promoting a sexual performance by a minor, after finding that the trial court had abused its discretion in failing to consider the prejudicial effect of certain evidence of homosexual voyeurism and predation. The case was remanded for a new trial.

 

Purcell had been convicted under a Kentucky statute which criminalized the promotion of “any performance which includes sexual conduct by a minor”. Purcell admitted to taking a photograph of a thirteen year old boy, “to satisfy a prurient interest”, although he claimed that the prurient interest was not his own, but that of two unidentified women.

 

In reaching its decision, the court considered both the constitutionality of the Kentucky statute under which Purcell had been convicted, as well as the constitutionality of the Commonwealth’s use of evidence of “prior bad acts”, specifically, several instances of what the court characterized as “ homosexual voyeurism and predation” that had occurred over twenty years earlier.

 

Relying on the Supreme Court’s opinion in _New York v. Ferber_, which had held that “ the primary evil [of child pornography] is not the visual reproduction’s effect on the consumer, but its effect on the child, “  the court found that the Kentucky statute was not void for vagueness. The court also observed, however, that the First Amendment protects “mere nudity,” and concluded that the statute was facially overbroad, in that it did not contain exemptions for reproductions of a private, family nature, or for those made with the parents’ permission. Rather than strike down the statute, the court limited it construction so that “sexual conduct by a minor”  would be defined as “willful or intentional exhibition of the genitals” only when the exhibition is lewd.

 

Having construed the statute as requiring a finding of lewdness, the court considered the various approaches by state courts to the definition of lewdness, and adopted the test first enunciated by the District Court for southern California, in _United States v. Dost_. The _Dost_,  test relies on an evaluation of six factors, and does not require that all six be present before a depiction is deemed lewd. Instead, _Dost_ creates what is essentially a balancing test, that also takes into account the surrounding circumstances and the age of the child.

 

The court also considered the use of evidence by the Commonwealth. The court found that the prosecution has used improper questioning and irrelevant witnesses in order to attack Purcell’s morality. The court found that the prosecution had no permissible motive in introducing evidence of incidents dating back twenty years, which could only serve to impeach Purcell’s testimony.  Since Purcell had admitted to taking the photograph in order to satisfy a prurient interest, the evidence of prior voyeurism was unnecessary. The court also held that even if such evidence has been necessary, it should have been excluded since whatever probative value it may have had was substantially outweighed by the danger of prejudice and confusion of issues. The Court found that the evidence had identified Purcell as a long-practicing serial homosexual predator, and that the only purpose of such evidence was to encourage the jury to convict Purcell because of what he was, rather than what he’d been charged with. Since the trial judge failed to weigh the prejudicial effect of the evidence against its probative value, the court reversed and remanded for a new trial. _Joe Griffin_

 

Surviving Gay Partners Win Big Class Action Suit in Canada

 

The Court of Appeal for Ontario ruled in _Hislop v. Attorney General of Canada_, C41224 (November 26, 2004), that the federal government violated the Charter of Rights and Freedoms in 2000 when it adjusted the federal pension law in response to the Supreme Court of Canada’s decision in _M. v. H._, 2 S.C.R. 3 (1999), that had established the principal that surviving same-sex partners must be treated the same as spouses for purposes of pension entitlements. 

 

The Modernization of Benefits and Obligations Act (MOBA), S.C. 2000, Ch. 12, recognized same-sex partners for that purpose, but only effective beginning back in January 1,1998, and did not provide for any benefits for persons whose same-sex partners had passed away previous to that time.  The Charter of Rights, with its equality guarantee in Section 15(1), went into effect in 1985, however, creating an argument that same-sex partners had been entitled to be treated as spouses from that date, and that the MOBA should have extended pension entitlements retroactively.  The issue is critical, because Canada’s federal pension system, that country’s equivalent to the United States’ social security old age retirement system, provides significant entitlements for surviving partners when a worker who has paid into the system passes away (similar to the U.S. survivor’s benefit program).

 

Plaintiffs in the case, suing on behalf of a class of all similarly-situated surviving same-sex partners, were led by George Hislop, now 77, a long-time gay rights advocate whose activism was largely supported by his partner, Ron Shearer, an art director for a lighting company.  Shearer had paid in to the pension system for many years, but when he died in 1986, shortly after the Charter went into effect, Hislop was denied survivors’ benefits on the ground that the two were not married.  (Since then, of course, the Ontario courts have recognized the right of same-sex partners to marry, effective in 2003, in another interpretation of the Charter of Rights and Freedoms, adding weight to the argument that survivors’ pension rights should be retroactive.)

 

The government argued that at the time the Charter was written, a political decision had been made not to expressly include “sexual orientation” in the list of forbidden grounds of discrimination, fearing that this might doom ratification, but the equality provision was broadly written to allow the courts to identify grounds of prohibited discrimination that were analgous to those listed, which included sex.  In a series of decisions during the 1980s and 1990s, the Supreme Court of Canada found that sexual orientation was an analogous ground, and that inequitable treatment of same-sex partners raised substantial issues under the Charter. 

 

In this case, the government argued that as the equality rights of gay people were gradually expanded through court decisions and not identified expressly in the Charter at the time of its adoption, the government was not at fault for moving gradually and taking into account expense concerns when it legislated.  After all, insisted the government, it was not until 1999 that the Supreme Court had definitively established that the government must treat same-sex partners as spouses for purposes of benefits laws, and the Supreme Court had not itself dictated that its decision be made retroactive.

 

The Ontario court’s opinion, which upheld in its essentials the December 19, 2003, judgment of Ontario Superior Court Justice Ellen M. Macdonald, was issued in a joint opinion for a panel of three judges, signed by Justices Louise Charron, Kathryn Feldman, and Susan Lang.  (Justice Charron, who was appointed to the Supreme Court of Canada this past August, had participated in the hearing and decision of the case while a member of the Ontario appeals court.  Her name on this opinion bodes well for the pending opinion by the Supreme Court on the questions concerning same-sex marriage that were posed by the government and argued last month.)  In an interesting contrast to the composition of the U.S. judiciary, it is noteworthy that every judge who has ruled in this case so far has been a woman, and that women now constitute a majority of Canada’s Supreme Court.

 

After summarizing the government’s argument, the Court said, “it is clear that the MOBA is only the latest step in a long historical process in which the rights of gays and lesbians have come to be recognized by society, by the courts, and by the legislatures as deserving of equal recognition and protection by the law.  The Crown says that this history demonstrates that the MOBA is not discriminatory.  Seen in the context of the historical evolution of gay rights, the preclusion of retroactive CPP pension rights for same-sex survivors does not affect the dignity of the claimants.  However, it is difficult to see how this historical evolution has any bearing on the analysis of whether the MOBA amendments to the CPP constitute discrimination.”

 

Pointing to the essential unfairness left by the lack of retroactivity, the court said, “The partners of same-sex survivors contributed to the CPP, yet their surviving partners were denied access to the federal pension program, a program that is a fundamental pillar of Canada’s retirement income system.  The denial of equal access to such a fundamental social institution constituted a complete non-recognition of these same-sex survivors as full members of Canadian society.”  The court pointed out that in fact the issue of equality claims for same-sex couples had been forcibly raised many times in public debate since the mid-1980s, so the government could not plausibly argue that the court rulings in the late 1990s were a total surprise.  Indeed, the court appeared to find it ironic that the very legislation that Parliament passed in response to the equality commands of the Supreme Court’s decision created a new inequality.

 

In addition to upholding retroactive pension claims, which may be sought by more than a thousand survivors, the appeals court also upheld the trial judge’s decision to award interest on the benefits owed.  As a result, the ultimate cost to the government of paying benefits and interest due under this decision make this potentially the largest class action award ever to be made by a Canadian court, according to one news source.  The government indicated that it would file an appeal in the Supreme Court of Canada.

 

The attorneys for the plaintiffs included David F. O’Connor, R. Douglas Elliot, R. Trent Morris, Victoria A. Paris, Kenneth W. Smith and Sharon Matthews, many of whom have also played prominent roles in the so-far-successful litigation over same-sex marriage rights in Canada.   A.S.L.

 

Florist/Dungeonmaster Sent to Prison in Nebraska; Consensual SM Is Criminal Assault

 

The Nebraska Supreme Court has upheld a trial court's conviction of a man who operated a sex dungeon under his Wayne, Nebraska, flower shop, for assault, sexual assault, false imprisonment, and terroristic threats.  The court held that his “slave”'s consent to his own mistreatment was held to be no defense to an assault charge under  Nebraska criminal statutes, and the personal liberty for consenting adults to have sex that was described by the U.S. Supreme Court in _Lawrence v. Texas_ was held to be irrelevant to this case. _State of Nebraska v. Van_, 268 Neb. 814, 2004 WL 2565874 (Neb. Nov 12, 2004),

 

Roger Van, a 55-year-old divorcee described in Nebraska newspapers as a “roly-poly teddy bear,” ran Nebraska Floral and Gifts at street level while torturing “slaves” down in the basement.  During the summer of 2001, he entered an e-mail relationship with JGC, a Houston resident, who wanted to submit to total domination by Van.  JGC expressed via e-mail a desire for a “no limits” relationship, and that he expected to be tortured and humiliated. (In testimony in the criminal trial, he said that he had expected eventually die from his relationship with Van.)   JGC had previously been in similar relationships with others, but his prior relationships did not go far enough to satisfy him. 

 

JGC's e-mails specified that once Van took possession of him, Van should keep him restrained and never allow him to escape.  JGC indicated that he wanted to be flogged, whipped, beaten, restrained, gagged, shaved, tattooed, pierced, blindfolded, injected with saline in his scrotum, locked in a cell, and subjected to hot wax drippings.  Clothespins should be placed on his body and ripped off, and electronic stimulation should be used on him.  JGC wrote: “The 'rules' shouldn't apply to true Masters; they should be allowed to do whatever they want whenever they want.” 

 

[Note:  Saline injections swell the scrotum by filling it and stretching the sac; they may be painful but they “provide a marked visual treat and sensation,” according to the following on-line source: http://www.smgays.co.uk/cbt4.htm.]

 

JGC arranged to stage his own apparent abduction so the folks back home would not suspect his voluntary subjugation.  He showed up in Wayne and was promptly restrained, beaten, and shaved by Van.  Van told JGC to write down everything he had done wrong in his life, as these confessions were to become the basis of future punishments.  JGC, in the course of writing, had a “catharsis” and realized that he was not a “bad person,” and did not need to be punished.  After one day in the dungeon, he realized he wanted to go back to Houston.  However, by mutual agreement, no “safe word” had been devised so that JGC could effectively communicate his desire to end the torture.  Van, who claimed that he had believed JGC’s intention to have Van ignore any pleas to end the relationship, held JGC to his e-mail desires of never wanting to be let go.

 

For a week, JGC was subjected to all manner of bondage, torture, and humiliation in Van’s basement dungeon, including anal penetration while under restraints.  (The Nebraska Supreme Court’s opinion recounts the particulars in matter-of-fact but delectable detail.)  After a little over a week, Van's other slave and assistant dungeonmaster, Jerry Marshall, realized that JGC really wanted to get out of the relationship.  While Van was away, Marshall took JGC to the Omaha bus depot and sent him back to Houston.  JGC was picked up by his father, who pressured the initially reluctant JGC to give a detailed statement to the police, identifying Van and Marshall by name.  Marshall, who had participated with Van in JGC's torture, was allowed to plead guilty to a lesser charge in return for his testimony against Van.

 

Van was convicted on several counts and sentenced to 16 to 29 years in prison.  But before the sentencing, Van fled, leading Nebraska State Police officers on a wild chase all the way to California, where Van totaled his van in a crash with a police car.  He was returned to Nebraska for sentencing, right around the time that _Lawrence v. Texas_ was decided.

 

Van appealed his conviction on numerous grounds, all of which were unanimously rejected by the Nebraska Supreme Court.  Of greatest interest to the _Law Notes_ readership are the court's application of _Lawrence v. Texas_, 539 U.S. 558 (2003) (private consensual sodomy protected by Constitution), and the court's discussion of the role of consent in cases of assault in the context of a gay SM relationship.

 

The Nebraska court recognizes that _Lawrence_ protects private consensual sexual conduct.  It differentiates _Lawrence_ by noting that consent was not at issue in that case, but it is “very much at issue” in _State v. Van_. _Lawrence_ in no way protects nonconsensual sexual conduct.

Paradoxically, however, after stating that consent was at issue in _State v. Van_, the court looked at the Nebraska assault statute, which does not mention “consent” as a defense.  The court had held, in the past, that a person could not consent to his or her own assault. _State v. Hatfield_, 218 Neb. 470, 474, 356 N.W.2d 872, 876 (1984).  Hence, whether one consents to one's own assault is, in reality, not at issue.  The court quotes a footnote in the New York heterosexual BDSM (bondage & discipline/sadomasochism) case of _People v. Jovanovic_, 263 A.D.2d 182, 198 n.5, 700 N.Y.S.2d 156, 168 n.5 (1999), which stated, “as a matter of public policy, a person cannot avoid criminal responsibility for an assault that causes injury or carries a risk of serious harm, even if the victim asked for or consented to the act.” (In the same opinion, however, the court vacated the conviction of the defendant on the ground that the trial court had refused to admit relevant evidence going to the issue of consent.)   The Nebraska court flips back to _Lawrence,_ noting that there the Supreme Court held that regulation of private consensual adult sexual conduct was inappropriate “absent injury to a person . . . .”  Nebraska's assault statute states that “a person commits the offense of assault . . . if he intentionally or knowingly causes serious bodily injury to another person.”  Since _Lawrence_ does not pertain to anything causing “injury to a person,” Van's actions toward JGC – or at least those actions involving serious bodily injury -- are not protected activity, whether consensual or not.  Hence, the application of Nebraska's assault laws to these facts do not, in the Nebraska Supreme Court’s view, violate Van's constitutional right to sexual privacy.

 

Although one clearly may not consent to ordinary assault, the court ruled that consent is a defense to sexual assault.  Van argued that JGC did not object physically or verbally to anal penetration.  However, “without consent<!70> within the sexual assault statute can mean compulsion to submit due to the use of force or threat of force; no verbal or physical resistance is required. “The record includes evidence that JGC was subject to beatings for disobeying Van and that he revoked his consent to the BDSM relationship prior to the acts of sexual penetration,” stated the court.  This was sufficient evidence to support this charge.

 

Van claimed arbitrary application of the law to him, in that other consensual acts that would theoretically fall under the assault statute (e.g., surgery, tattoos, body piercing) are not prosecuted.  However, Van failed to make a timely motion to quash on this basis, and the Nebraska Supreme Court did not rule on this issue.

 

Van appealed on over a dozen other grounds covering a litany of standard objections to a criminal conviction.  The grounds include insufficiency of evidence, prejudicial testimony, ineffective assistance of counsel, excessive sentences, prosecutorial misconduct (failure to provide exculpatory information), juror misconduct, and newly discovered evidence (that JGC was motivated by financial gain).  Each issue was decided in favor of the state.  One of the issues, the rape shield law, merits additional discussion here:

 

Evidence of specific instances of JGC's prior BDSM activities was barred from evidence under the rape shield law.  However, Van was allowed to enter into evidence the fact that JGC had previously engaged in BDSM.  JGC's specific history of BDSM activities would, stated Van, impeach his credibility as a witness.  However, despite his claim to the contrary, Van was allowed to question JGC extensively about his previous BDSM activities.  Also, Van failed to raise the rape shield issue at trial.  Therefore, the Nebraska Supreme Court did not rule on the issue, rejected all the grounds of appeal and affirmed the prison sentence imposed by the trial court. _Alan J. Jacobs_

 

New York High Court Tightens Rules for Attorney Fees in Civil Rights Cases

 

Answering questions con